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is a defective contention because none of the conditions for a negotiated
procurement, provided for in Section 53 of the law, exists in this case. 9
31. Even the mere circumstance that the Northrail project is
financed through a “tied loan” from EXIM Bank under an arrangement
which requires EXIM Bank to nominate/select the contractor for the
project to be financed by the loan does not help the Respondents. Such
an arrangement is by no means among the alternative methods of
procurement enumerated under Section 48 of R.A. No. 9184, which
allows exceptions to the rule on public bidding; meanwhile, the law
contemplates no other alternative method of procurement as an
exception to the competitive public bidding requirement; hence, the time
honored doctrine of expressio unius est exclusio alterius applies.
directly negotiates a contract with a technically, legally and financially capable
supplier, contractor or consultant.
In all instances, the Procuring Entity shall ensure that the most advantageous price for
the government is obtained.
9 (R.A. No. 9184) Sec. 53. Negotiated Procurement. - Negotiated Procurement shall be
allowed only in the following instances:
a. In case of two (2) failed bidding as provided in Section 35 hereof;
b. In case of imminent danger to life or property during a state of calamity, or
when time is of the essence arising from natural or man-made calamities or
other causes where immediate action is necessary to prevent damage to or loss
of life or property, or to restore vital public services, infrastructure facilities and
other public utilities;
c. Take-over of contracts, which have been rescinded or terminated for causes
provided for in the contract and existing laws, where immediate action is
necessary to prevent damage to or loss of life or property, or to restore vital
public services, infrastructure facilities and other public utilities;
d. Where the subject contract is adjacent or contiguous to an on-going
infrastructure project, as defined in the IRR: Provided, however, That the
original contract is the result of a Competitive Bidding; the subject contract to
be negotiated has similar or related scopes of work; it is within the contracting
capacity of the contractor; the contractor uses the same prices or lower unit
prices as in the original contract less mobilization cost; the amount involved
does not exceed the amount of the ongoing project; and, the contractor has no
negative slippage: Provided, further, That negotiations for the procurement are
commenced before the expiry of the original contract. Wherever applicable, the
principle shall also govern consultancy contract, where the consultants have
unique experience and expertise to deliver the required service; or,
e. Subject to the guidelines specified in the IRR, purchases of Goods from
another agency of the government, such as the Procurement Service of the DBM,
which is tasked with a centralized procurement of commonly used Goods for the
government in accordance with Letters of Instruction No. 755 and Executive
Order No. 359, series of 1989.
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